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Judge Jim Gray - Articles 1

Liberty Magazine Article

For more than two decades I was a soldier in the War on Drugs. In the course of my career, I have helped put drug users and dealers in jail; I have presided over the break-up of families; I have followed the laws of my state and country, and have seen their results.

At one point, I held the record for the largest drug prosecution in the Los Angeles area: 75 kilos of heroin, which was and is a lot of narcotics. But today the record is 18 tons. I have prosecuted some people, and later sentenced others, to long terms in prison for drug offenses, and would do so again. But it has not done any good. I have concluded that we would be in much better shape if we could somehow take the profit out of the drug trade. Truly the drugs are dangerous, but it is the drug money that is turning a disease into a plague.

I saw the heartbreaking results of drug prohibition too many times in my own courtroom. I saw children tempted by adults to become involved in drug trafficking for $50 in cash, a lot of money to a youngster in the inner city, or almost anywhere else. Once the child’s reliability has been established in his roles as a lookout or “gofer,” he is soon trusted to sell small amounts of drugs, which, of course, results in greater profits both for the adult dealer and his protégé. The children sell these drugs, not to adults, but to their peers, thus recruiting more children into a life of taking and selling drugs. I saw this repeated again and again. But like others in the court system, I didn’t talk about it.

More than once, I saw a single mother who made a big mistake: she chose the wrong boyfriend, a drug dealer. One day, he offered her $400 to carry a particular package across town and give it to a fellow dealer. She strongly suspected that it contained drugs, but she needed the money to pay her rent. So she did it, and she was arrested, convicted and sentenced to five years in prison for the transportation of cocaine. Since the mother legally abandoned her children because she could not take care of them, they all came to me, in juvenile court, to be dealt with as abused and neglected children.

I tell these mothers that unless they are really lucky and have a close personal friend or family member that is both willing and able to take care of them until she is released from custody, her children will probably be adopted by somebody else. That is usually enough to make the mother hysterical.

Taxpayers shouldn’t be very happy, either. Not only does it cost about $25,000 to keep the mother in prison for the next year; it also costs about $5000 per month to keep a child in a group home until adoption. For a family of a mother and two children, that means that our local government has to spend about $145,000 of taxpayer money for the first year simply to separate a mother from her children. And it falls upon me to enforce this result. I do it, because I am required by my oath of office to follow the law. But there came a time when I could be quiet about this terrible situation no longer. I concluded that helping to repeal drug prohibition was the best and most lasting gift I could make to my country.

On April 8, 1992, I held a press conference outside the Courthouse in Santa Ana and recommended that we as a country investigate the possibility of change. Since that time, I have spoken on this subject as often as possible, consistent with getting my cases tried. Most people listen; some agree, and others still want to punish me for my attempts to have an open and honest discussion of drug policy. In that vein, I remember a short introduction I once received before one of my talks, which was along the lines of: “I know you all want to hear the latest dope from the courthouse, so here’s Judge Gray.”

During the next few years, I worked on a book to expose the whole hopeless anti-drug crusade. In 2001, my book, Why Our Drug Laws Have Failed And What We Can Do About It -- A Judicial Indictment of the War on Drugs, was published by Temple University Press. It was the culmination of my experience as a former federal prosecutor with the United States Attorney’s Office in Los Angeles, criminal defense attorney in the United States Navy JAG Corps, and trial judge in Orange County, California since 1983, experience which had long before had convinced me that our nation’s program of drug prohibition was not simply a failure, but a hopeless failure.

In February, 2003, I took another step to end the War on Drugs. After being a Republican for all of my adult life, I registered as a dues-paying member of the Libertarian Party. I realized that the major parties will never begin the process of ending the War on Drugs. It takes another party to do that -- one that holds dear the principles of liberty. I had taken the “World’s Smallest Political Quiz,” and discovered that I was already a libertarian. I was frustrated and concerned about our country’s lack of principled leadership, the direction of our economy, and the continued subversion of the protections of our Bill of Rights. The Libertarian Party is my natural home. And it is the Libertarian Party’s historic mission to begin the peace process in the War on Drugs.

Drug Prohibition has resulted in a greater loss of civil liberties than anything else in the history of our country. The United States of America leads the world in the incarceration of its people, mostly for non-violent drug offenses. Statistics show that all racial groups in our country use and abuse drugs at basically the same rate, but most of those incarcerated are people of color. The War on Drugs has contributed substantially to the increasing power, bureaucracy, and intrusiveness of government. And, of course, the sale of illicit drugs is by far the largest source of funding for terrorists around the world. If we were truly serious about fighting terrorism we would kill the “Golden Goose” of terrorism, which is Drug Prohibition.

It is important to understand that the failure of these laws is not the fault of law enforcement. It makes as much sense to blame the police and the criminal justice system for the failure of Drug Prohibition as it would have to blame Elliot Ness for the failure of Alcohol Prohibition. The tragic results are the fault of the drug laws themselves, and not those who have been assigned the impossible task of enforcing them.

“We the People” are facing radicals at the controls of the federal government who are insensitive if not impervious to the harm they are causing. When the head of the Drug Enforcement Administration expressly flouts the will of the people as expressed, for example, by California’s medical marijuana Proposition 215, that is one thing. He is a policeman, enforcing the law as ordered, even though he is engaged in the unauthorized practice of medicine. But what about when the head of the Department of Justice subverts that will? When John Ashcroft, as the United States Attorney General, directly acts against the expressed will of the people in this area, simply because he disagrees with it, he is not being conservative. We should call this action what it is: extremist. And when various officials of the federal government use our tax money actively to oppose state ballot initiatives all around the country, we should call that what it is: illegal.

The Republican and Democratic parties are invested in the drug war, committed to it. If we wait for them to act against Drug Prohibition, we will be waiting a very long time. However, we Libertarians are singularly in a position to help. I suggest that the Libertarian Party make the issue of the repeal of Drug Prohibition the centerpiece issue of all state and federal political campaigns for 2004. I understand that R. W. Bradford made a similar argument in speeches over the past several years, and in an article in the December 1999 edition of Liberty Magazine, and so possibly have others. The idea is not original with me, but it is a good idea.

I am aware that historically the Libertarian Party has been largely unsuccessful in putting its candidates into office. But that can change, and in many ways the voters are ahead of the politicians on this issue. If we can make it clear that every vote for a state or federal Libertarian candidate represents a vote to end the War on Drugs, and we capture only a third of the votes of people who favor drug reform, we will get ten percent of the vote. That would be enough to make us a political force to be reckoned with and to put the drug war into the nation’s political debate.

I want to make this very clear. If we focus our campaign on the drug issue, people who agree with us will not worry about “throwing away their vote” on a third-party candidate. For a change, every vote will rightfully be seen to matter.

Many Americans have seen and suffered through the unnecessary harms perpetrated by our failed drug policy. And many of these people are organized. Recently I have contacted all the drug policy reform groups I know, such as the Drug Policy Alliance, Families Against Mandatory Minimums, Common Sense for Drug Policy, Families Against Three Strikes, the National Organization for the Reform of Marijuana Laws, the Marijuana Policy Project, and the Drug Policy Foundations of Texas, Hawaii and New Mexico. I am calling their members to join me and become dues-paying members of the Libertarian Party, and am requesting their friends and family members to do the same. Please join me in this critical effort.

The people in these drug policy reform groups are frustrated by the absence of a tangible national movement that they can support. In addition, in many ways they have learned through their experiences to share libertarian principles and values. The more people who register Libertarian, the more public attention will be paid to the issue of drug policy reform. This, in turn, will attract additional members, and additional attention. I think this plan will be successful, because most of the people in these groups are active; they are committed; they vote; and they have friends who vote.

Most Americans realize that our country is not in better shape today than we were five years ago with regard to the use and abuse of drugs and all the harm and misery that accompany them. They also are beginning to understand that since that is the case, we can have no legitimate expectation of being in better shape next year than we are today unless we change our approach. Accordingly, many of our fellow citizens are beginning to realize that it is okay to discuss this subject. And, whether they know it or not, Americans are looking to the Party of Principle for guidance and leadership.

Our slogan for all state and federal elections in 2004 should be “This Time It Matters.” Because this time it does.

James P. Gray is a Judge of the Superior Court in Orange County, California, the author of Why Our Drug Laws Have Failed And What We Can Do About It – A Judicial Indictment of the War on Drugs, Temple University Press (2001), and has a website at www.judgejimgray.com.

IT'S A GRAY AREA: The Libertarian philosophy

Daily Pilot: Saturday, January 3, 2009

I was a lifelong Republican until I realized my party couldn’t be counted on. Not to protect my freedom or my liberty, and not to be “fiscally conservative.”
So I realized I could not be a part of an organization that did not reflect my values, or the values I believe this country is based upon.
Therefore, I decided to change parties. Where to go? Once I started to check out my options, it took me about two minutes to decide that I was a natural Libertarian.
Since that time many people have asked me what are the differences between Republicans, Democrats and Libertarians. Well, using a little poetic license just to make a point, I will tell you.
Republicans basically act like your father. They will let you spend your own money, but they tell you what to do in your personal life. And if you don’t follow their directions, they will punish you.
Democrats, on the other hand, want to act as your mother. They want to keep most all of your money, but promise to take care of you and spend your money on things they think are good for you. And, of course, they will not trust you to make your own decisions. Why? Because “Mommy knows best.”

Libertarians are completely different. Libertarians treat adults as adults. Make your own decisions, but you are bound by the decisions you make. In other words, Libertarians think you are smarter than any politicians about how to run your financial and personal life.

When people first hear about Libertarian philosophy it seems unsettling. But when it comes down to it, the Libertarian philosophy works. Think about it. Had Libertarians been in control of our federal and/or state government for the last 10 years, we would not be in financial trouble today. Instead we would actually be prospering both economically and sociologically.

But putting attempts at humor aside, what is the Libertarian philosophy? It has its roots in the philosophies of Thomas Jefferson, John Locke and Adam Smith. Of course, it is hard to generalize about any group of people. But simply stated, Libertarians believe in freedom, the Rule of Law, limited government, self-defense and free markets. They also have a basic confidence in the ability of ordinary people to make wise decisions about their own lives.

As an example, Libertarians believe that parents are in a far better position than the government to decide where and how their children should be educated.

Think of it this way. Most of the important institutions in society developed without governmental involvement. Examples are the development of language, money and markets. That does not at all mean Libertarians believe “anything goes.”

To the contrary, Libertarians believe adults should make their own decisions and be free to act as they deem appropriate, but only as long as those acts do not interfere with the rights of others. As a result, Libertarians are actually quite law-and-order minded.

Regarding self-defense, Libertarians agree with Jefferson when he said that whoever beats his swords into plowshares will soon be plowing for somebody else.

But Libertarians rebel at attempts by government to legislate all risks out of existence. They also believe in the “forgotten” 9th and 10th Amendments to the U.S. Constitution, which say that all rights not expressly given to the government by the Constitution are retained by the people.

This might sound like “egghead” talk, but it is important.

For example, nowhere in the Constitution by any stretch of the imagination does it say that government can control things like our healthcare system.

When I was growing up, we probably had the best healthcare system in the world.

Back then no one even raised the issue of not having access to good quality doctors, hospitals and medicines. Emergency Rooms were fully available as needed, and healthcare was reasonably priced. But then government began to take control, and look where it has taken us.

Libertarians understand the answer is not to have more government involvement, it is instead to limit government as much as possible.

In fact, Libertarians will tell you that if you think healthcare is expensive now, wait until it’s “free.”

To bring that point home even further, today there are two areas of medicine where we can still obtain top quality healthcare at reasonable and competitive prices. What are they? Cosmetic surgery and Lasik eye surgery. Everywhere you look you can see ads for these treatments at low prices, easy payments and many other nice benefits. Why? Because they are not controlled by government or insurance. These are places where the free market and individual choice are still in control.

Libertarians know we can reclaim what was once the best healthcare system in the world by bringing back that same free market choice.

Another program that has completely failed, especially for the poor, is our government’s welfare system. Government has trapped the poor on both sides with its bad policies.

On the one hand, minimum wage laws and licensing requirements make it harder for the poor to find that all-important first job.

On the other, it makes not working much more attractive by paying people not to work! (Then government looks at the problems it has created and naturally decides to do more and more of what has been shown not to work.)

In summary, Libertarians understand that a system of market incentives works better. Libertarians do not want to abandon people who are poor, downtrodden and disabled. But they want government “solutions” to be a last resort, instead of the first.

So I hope this has piqued your interest in America’s largest third party. If you would like to give it more thought, I recommend you read a book by David Boaz entitled “Libertarianism: A Primer” (The Free Press, 1997).

And about my new political party?

I believe the more you think about it, the more you will be favorably impressed.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2009), and can be contacted at JimPGray@sbcglobal.net or through his website at www.JudgeJimGray.com.

Orange County Register
The Orange County Register on Friday, November 30, 2001 in the Opinion Section, page Local 10.

FOLLOW THE MONEY

One of the overwhelmingly difficult things we face when confronted with a tragedy of the magnitude and complexity of Sept. 11 is frustration that we as individuals cannot think of anything constructive to do about it. Well, this time we can.

Remember the advice that "Deep Throat" purportedly gave to Woodward and Bernstein to "follow the money" during the Watergate investigation? That advice holds true with regard to the financing of terrorism as well. The key is still the money! Fanaticism without funding is far less dangerous.

Terrorists like Osama bin Laden are almost always in the business of selling illicit drugs, and they launder huge amounts of money from that trade in order to finance large parts of their operations. This is nothing new, of course, because repressive regimes and terrorist and revolutionary groups around the world have been using money from illicit drug sales to finance their bloody deeds for decades. These include Fidel Castro and Muammar Kaddafi's governments in Cuba and Libya, the late Ayatollah Khomeini's government in Iran, and the former governments of Manuel Noriega and Erich Honecker in Panama and East Germany. The government of Bulgaria has used the sale of drugs effectively in its attempts to dislodge the government of neighboring Turkey. Many of the civil wars in Afghanistan and Lebanon were fought over who would control the vast profits from the production, refining and distribution of hashish, heroin and cocaine. The Shining Path in Peru and the Revolutionary Armed Forces of Colombia guerilla movements are almost completely financed by the sale of illicit drugs, and both the Serbs and the Kosovo Liberation Army financed much of their black-market gun purchases by drug trafficking.

So if we really want to do something significant to reduce the danger of terrorism in our country and around the world, we must reduce the financing for that terrorism. Unfortunately, there is presently a movement to try to accomplish this by further intruding upon our civil liberties by having banks increase their surveillance of their customers' financial transactions in order to "crack down" on drug money launderers. But we have tried that and it doesn't work. Billions of dollars in profits stimulate amazing creativity, and this always keeps the drug traffickers and money launders a few steps ahead of the regulators. Trying to decrease the financing of terrorism by further increasing government intrusions into private transactions is like trying to stop a waterfall by standing under it with a bucket. You can fill up lots of buckets, but you cannot do anything to shut off the flow.

Instead, if we really want to deal a major blow to bin Laden and other terrorists around the world, we should repeal drug prohibition. Let's put our heads together and find a way to de-profitize the sale of these illicit drugs. Some positive results have been obtained by several programs in Western Europe, and we should investigate and utilize some of those programs. This is critical, because it isn't the drugs themselves, it is the prohibition of drugs that is the Golden Goose of terrorism. Although alcohol continues in some cases to be dangerous and addictive, repealing alcohol prohibition seriously reduced the funding for violent gangsters like Al Capone and Bugsy Siegel. We can do the same thing with terrorists like bin Laden.

When we finally see and understand the direct connection between illicit drug sales and terrorism, we will repeal our laws of drug prohibition that have funneled so much money into the forces of fear and destruction that all civilized people despise. And this we can do.

Judge Gray is an Orange County Superior Court judge and is the author of "Why Our Drug Laws Have Failed And What We Can Do About It ' A Judicial Indictment of the War on Drugs."

"Go With What Works: U.S. must rethink drug policy and take a different approach toward nonproblem users."

How is actor Robert Downey Jr.'s problem with drug abuse any different than Betty Ford's problem with alcohol abuse? Why is it appropriate to send Robert Downey Jr. to jail but send Betty Ford to treatment? Shouldn't drug users who cause harm to others raise different questions, and answers, than users such as Downey who do not harm anyone but themselves?

Why don't we make distinctions between prople who use drugs and people who abuse them? We automatically conclude that everyone who uses marijuana, for example, needs drug treatment. I agree that marijuana can have some harmful effects on the user, but, obviously, so can alcohol. I drink a glass of wine almost every night with dinner. Does that mean that I need an alcohol-treatment program?

Without making allowances for any of these distinctions, we have attempted to incarcerate our way out of our drug-use problems. That reminds me of the old saying, "If all you have is a hammer, everything you see looks like a nail."

As a result of the incarceration approach, our nation's jails and prisons are overcrowded severely, leading the world with 2 million inmates. But government statistics show that we have 20 million people in our country who regularly use illicit drugs. So even if we felt that prison for these other people was a good idea, where would we put them?

Based on my experience as a former federal prosecutor in Los Angeles, a former criminal defense attorney as a Navy JAG and a trial judge in Orange County since 1983, I am convinced that we must rethink our nation's drug policy completely. We clearly have only limited resources to spend, and we should focus those on what will actually reduce death, crime, disease and access by children to these dangerous drugs.

The best way to accomplish those goals is to use the criminal justice system in the way it works the best: by holding people accountable for their conduct. We are doing that fairly successfully today with regard to problem alcohol users, and there is no reason why we should not adopt the same approach to address problem users of other mind-altering and sometimes addicting drugs. The problem users will find their way into our criminal justice system by their conduct, and then can be jailed, imprisoned and coerced into drug treatment, as appropriate.

That would leave the needs of the nonproblem users, like Downey, to be met in the same way we are addressing the users of tobacco, which is education, controlled regulation of the market, treatment and societal pressure. Let's face it, tobacco is a killer and is at least as addictive as cocaine. But virtually everyone agrees that we would only be compounding our problems by making tobacco illegal.

If we did prohibit tobacco, we immediately would begin to receive the same results we have obtained with our drug prohibition laws: increased crime from artificially expensive cigarettes; the shooting of police officers and innocent bystanders by "tobacco dealers" and more corruption of our people, public officials and governments worldwide because of the influx of tobacco money and increased tobacco selling and because of the quick and obscene profits to be made by selling it.

Accompanying these are the decreased health of people smoking because of the absence of information about the quality and strength of cigarettes, a loss of civil liberties unmatched by anything in our nation's history and increased taxes to pay for all of these severe but unnecessary problems.

Why have we experienced all of these problems with drugs? Because there has been a complete collapse of the rule of law with regard to the manufacture, sale, transfer, use and possession of these sometimes dangerous and addicting drugs. At least with alcohol, we have things like licensing, age restrictions and quality control. And the sales are taxed. But there are absolutely no controls with regard to drugs. Why? Because alcohol is regulated by the government, and the other drugs are controlled by the mob.

Like Alcohol Prohibition before it, our laws of Drug Prohibition may sound good from a moral standpoint, but they simply don't work. We are unable to repeal the law of supply and demand. Once Alcohol Prohibition was repealed, crime went down in our country by 60 percent after only one year, and it continued to decline each year thereafter until the beginning of World War II. And problems with regard to corruption, contaminated "bathtub gin" and loss of respect for the law were decreased materially, as well.

Instead, let's go with what works.

In June of 1994, the RAND Corporation released a study that said that we get seven times more value for our tax money by drug-treatment programs than by the incarceration of even heavy users of drugs. So let's get the nonproblem users, like Ford and Downey, out of the criminal justice system and focus our scarce resources, like Proposition 36 programs and drug courts, on the problem users.

These crimninal offenders can be sentenced to short periods of incarceration in order to get their attention, and then combine that with court-mandated, strictly-enforced drug treatment. Those offenders who are violent, furnish drugs to children or do not take their recovery seriously can be removed from society by putting and keeping them in prison.

This would reduce materially death, disease, crime, taxes, drug usage and access of these drugs to children. Why not go with what works? And in the meantime, what if we based prison wardens' promotions and bonuses on their ability to reduce the recidivism rates of inmates who have been released back into society from their custody? Do you think the wardens immediately would implement drug-treatment programs in their prisons? Now that might work.

"JUST SAY NO."

Our drug laws have failed. We’ve lost the so-called War on Drugs, and now it is time for a coherent and common-sense approach to the drug problem. I say this not as an ivory-tower idealist but based on my experience as a former federal prosecutor in Los Angeles, a criminal defense attorney in Navy’s Judge Advocate General Corps, and a trial judge in Orange County since 1983. Because my judicial duties have required me to enforce this failed system, I eventually could not keep quiet about it any longer. Since 1992 I’ve been speaking out publicly, not only about our failed policy but also about the fact that we have viable alternatives to it. Street drugs are clearly harmful; however, we must stop increasing the harm they do. Therefore, I propose we must, as a country, investigate the possibility of change and be mindful of the following five points:

First, just because people discuss alternatives to our current drug policy, or even because they believe we should adopt one or more of these options, does not mean that they condone drug use or abuse.

Second, there is no such thing as having both a free society, and a drug-free society. Put another way, dangerous as they are, these drugs are here to stay, and we should work to discover how best to reduce the harm they will cause in our communities.

Third, the failure of our present drug laws is not the fault of law enforcement. These dedicated people have an extremely difficult and dangerous job, and they are doing it much better that any of us have a right to expect. Law enforcement is no more at fault for the failure of drug prohibition than was Elliott Ness at fault for the failure of alcohol prohibition.

Fourth, it is far easier and more effective to control a legal market than an illegal one. Under our current policy the only laws that are enforced about the use and sale of illicit drugs are those imposed by the drug traffickers. As such, we have seen a collapse of the rule of law with regard to quality control, sales to minors, and regulations of the marketplace. The better approach would be to bring these dangerous drugs back under the law.

And fifth, no matter what options we utilize, they will have some problems.

Drug prohibition has its own unique and harmful consequences as well. For example, when drug dealers shoot police officers, witnesses, innocent bystanders, or even each other, that is a drug prohibition problem rather than a drug problem. Today, when the distributors of Coors and Budweiser have a problem with each other, they take it to court, but the distributors of illicit substances take their problems to the streets. Similarly, when drug users are forced to prostitute themselves or steal to get money to buy artificially expensive illicit drugs from the criminal underworld, that is a drug-prohibition problem much more that a drug problem. So, too, is the diversion of billions of dollars from the prosecution of violent street crime and fraud to the prosecution of hundreds of thousands of non-violent drug sellers and millions of drug users a distinct problem of drug prohibition. And this does not even begin to address the violence and corruption inflicted on countries such as Colombia and Mexico as a direct result of the obscene quantities of money gathered from the sale of illicit drugs.

Unfortunately, it is easy to become a demagogue about the issue of drug policy, "standing up for our children" by advocating ever more strict criminal sentences for drug dealers. It is also easy to denigrate everyone who attempts to explore alternatives to the War on Drugs as a "drug legalizer" who doesn’t care if a twelve-year-old child buys cocaine in a vending machine across the street from his or her junior high school. However, the benefits of drug treatment, as well as the corruption and other major harmful effects directly inflicted on our society by illegal drug money, drug impurities, and requiring people to associate with criminals instead of medical professionals to maintain their drug habits, takes much longer to discuss. And anyone who attempts to do so in a 20-second sound bite sounds like a wimp.

Fortunately, many people are beginning to agree that our War on Drugs is not working, but still they feel a deep frustration that no viable options have presented themselves. Former Secretary of State George Shultz succinctly voices this view when he says, "I have a zero tolerance attitude, but I am still searching for the best way of implementing it." Well, there’s some good news: We have viable choices between the two extremes of zero tolerance on the one hand and drug legalization, on the other, and many of these options are working quite successfully in other countries.

These options include various forms of drug treatment, such as rehabilitation, both voluntary and involuntary, public and private. Other options include medicalization, which fundamentally puts drug-using people under the supervision of a medical doctor and his or her staff; using needle exchange programs, which exchange without charge dirty needles for clean ones; drug maintenance, which allows prescriptions for an addict’s drug of choice to be filled at a medical clinic so that the subject neither gets high nor goes through withdrawal but is maintained at an equilibrium level until he or she is ready to attempt to be drug free (this program is working very well today in Switzerland); and drug substitution, which substitutes one drug, such as methadone, for the subject’s drug of choice, such as heroin. Many countries in Western Europe, which are not as concerned as we are with puritan morality, take a much more practical, harm-reduction approach to their drug problems by combining these alternative methods - with successful results.

Another option, of course, is an even more strictly administered War on Drugs, zero tolerance - "only this time we will really get tough!" Unfortunately, we have been getting tougher and tougher for the last several decades, and yet every time we have done so it has made our problems worse. In fact, in my view, our current policy of zero tolerance has brought us the worst of all worlds: We have filled our prisons with less-violent and less-organized drug sellers, thereby leaving this enormously lucrative market to those who are more violent and more organized. The result has been that the availability and purity of drugs have increased dramatically while the price has gone down. We couldn’t have created a worse situation if we had tried.

The best option we have is federalism, the principle that guided the repeal of alcohol prohibition in 1933. When alcohol prohibition was repealed, each state pursued the policy that best met its needs, and the federal government was eventually limited to helping each state enforce its own laws.

Of course, whatever option or combination of options we eventually pursue must and will include a major component for drug education. The need for education about drugs and drug abuse is almost universally agreed on, and many people believe that this is the only component of our current policy that is actually working.

Finally, we must explore various methods of "de-profitizing," or taking the money out of selling these dangerous drugs. Of course these drugs are dangerous, but it is drug money that is causing the most significant harm. Methods to reduce the provitability of the drug trade include decriminalization, which basically means that, although the drugs remain illegal, as long as people stay within very clear guidelines, the police will leave them alone (this program is working quite well today in Holland, where drug use for both adults and teenagers is about half of what it is in the United States); regulated distribution, which is the strictly controlled and regulated sale to adults of designated drugs, similar to the way alcohol is sold in most states; and legalization, which basically leaves the distribution of drugs to the marketplace, with all of its protections under the civil justice system, and uses the criminal justice system to govern people’s behavior. Almost no one I have heard of actually favors the extreme system of the legalizing drugs, and I certainly do not.

Voters appear to be well ahead of politicians in the area of drug policy. Why? Because politicians perceive that they would be labeled soft on crime if they take a more moderate approach. Even President Clinton did not talk about a possible change in drug policy until the final weeks of his term. Whose fault is this? We have no one to blame but ourselves. It is our government, and it is our responsibility to show our elected officials that it is all right to talk about the possibility of change.

To some degree, this is beginning to happen. When presented with initiatives about making marijuana available for medical purposes, voters in nine states as well as the District of Columbia have said yes, in overwhelming numbers. The same is true regarding asset-forfeiture reform. And all of this has occurred despite the vocal opposition of the federal government and its use of our tax money to argue against the initiatives. That was certainly what happened in California with regard to Proposition 215 for medical marijuana, and also Proposition 36, which mandates treatment instead of incarceration for first- and second-time drug users.

Progress has also been made in other areas. In the past ten years we have seen a positive revolution in the way the criminal justice system treats non-violent offenders who take mind-altering drugs. This is, of course, our drug courts, where drug users are treated compassionately as human beings who have a problem. But they are also held strictly accountable to satisfy the demands of the court’s drug-treatment program. In many cases the results have been gratifying.

Prop. 36 is certainly not perfect by any means. For example, it should not have left the funding of drug testing to chance. But it should be supported, not only because it is the law but also because it provides an opportunity to remove from the criminal justice system those people who are not problem drug users, leaving their drug-use habits to be addressed by health-care professionals. (For example, does anyone seriously believe that it is any more helpful to put actor Robert Downey, Jr. in jail for his drug abuse than it would have been to put Betty Ford in jail for her alcohol abuse?) This will allow drug courts, with their scarce resources, to focus on the problem drug users - and we all know that there are certainly enough of them to go around.

We did that in the Central Municipal Court in Orange County in 1984 with problem alcohol users, and our program was encouragingly successful. Even though it is not illegal for adults to buy, possess or use alcohol, we were able to use the sanctions of the criminal justice system to hold problem users accountable for the crimes they committed, such as driving under the influence, assaults, spousal abuse, and probation violations for failure to make child-support payments, and at the same time get them off alcohol. We were able to replace a drunk driver with a sober one. In other words, we operated a successful drug court. We proved that a substance does not have to be illegal in order to hold the problem users accountable for their actions, both by punishing them for their offenses and by effectively steering them into "voluntary" treatment. What was true for the dangerous and sometimes addicting drug of alcohol is also true for these other dangerous and sometimes addicting drugs. Since problem drug users will find their way into our criminal courts anyway, why are we persisting with our failed policy of drug prohibition and punishment?

With the mandate of the voters, Prop. 36 has given us a magnificent opportunity to turn away from the failed policies of the War on Drugs, with its needless and expensive prosecution and incarceration of nonproblem drug users - at a cost of about $25,000 per person per year. In its place, it gives us a chance to use the sanctions of the courts to address the criminal actions of people who use drugs.

Consequently, it is up to us as caring citizens, voters, and taxpayers to continue to make the government move toward a more rational, workable, and, as good fortune would have it, vastly less expensive national drug policy. This can be done simply by recognizing that we have viable alternatives to our failed War on Drugs. Waiting for those who have vested interests in the status quo to come around simply will not work. Politicians will continue to talk tough until voters show them that such talk will no longer get them elected. Entire agencies within our various governments, and legions of private enterprises as well, are addicted to the enormous amounts of drug-war funding. For us to ask these people if we should continue with all of this spending is like asking a barber if you need a haircut.

In my opinion, drug policy is the single most important issue facing our country today. But we can all help to effect a positive change by simply recognizing that we have alternatives to our failed drug policies. Demand for dangerous drugs can be reduced through education, drug treatment, bringing the users closer to medical professionals, reducing incentives by taking the profit out of trafficking in drugs, and, very importantly, holding people accountable for their actions in the same way we do for people who cause harm by their use or abuse of alcohol. The best way to start is to remember - and to remind others - that just because we discuss or even use these other options does not mean that we condone drug use or abuse.

A Judge's Critique of the War on Drugs
By Michael E. Raabe

It has been several years since Orange County's own Judge James P. Gray stood on courthouse steps and condemned the so-called war on drugs -- the criminalization and punishment of manufacture, possession and distribution of e.g., marijuana, cocaine and heroin. It has been many years as well since the Orange County Lawyer magazine aired that issue, printing both favorable and unfavorable views on that tenet.

Well, neither the Honorable James P. Gray, nor the war on drugs have gone away -- although both have been scarred by the continuation of that "war." The battle lines have been drawn and the issues have been aired. Now we witness either a balloon about to burst, i.e., a change in policy, moving away from criminalization; or a retrenchment such that our criminal laws take on a power never before utilized in the country.....

In his 2001 book, Why Our Drug Laws Have Failed and What We can Do About It (A Judicial Indictment of the War on Drugs), Judge James P. Gray in a 266 page tome published by Temple University Press, of Philadelphia, Pennsylvania, at a price of $18.95, has taken the debate to the next level. This is a full-fledged book, logically arranged and argued. It is not to be taken lightly -- by those favoring either the position of criminalization or decriminalization (or something in between).

Not only did the Judge do his homework in the research, organization and writing of the book; but Temple University Press has aided in the presentation by publicizing endorsements and praise from the lies of Walter Cronkite, Milton Friedman, George P. Schultz... and others. Is it zealous foolhardiness to continue the "war," or have "regulation only" advocates missed something?

In reading the Judge's book, his voluminous research, his phrasing of options, and his portrayal of the past century's failures, this author is persuaded. But, like most difficult issues, there are two sides... and the opposing view also has its value and impressive advocates.

Be that as it may, the book is worthwhile reading for those in support... and for those not... However, perhaps the most interesting aspect of the book is that which is unstated. For an individual who remains a sitting judge, for a non-drug-user, for a judge with a background lending himself to judicial advancement or a lucrative alternative career in the private sector, both the proponents and nay sayers must e impressed by the courage of his legal crusade. Absent a dramatically rapid turnaround in policy, this Judge has given it all this one issue.

No more need be stated here. I earnestly suggest you read the book.

Michael E. Raabe is an attorney with the Law Offices of Michelle Reinglass and an Associate Editor of the Orange Country Lawyer magazine. He can be reached via email at mraabe@fea.net.

Law school holds forum examining U.S. drug policy

DEBATE: Experts offer options for current prohibition such as legalizing use, more education
By David King

Daily Bruin Contributor

Admitting that the problem is practically unsolvable did not prevent the expert panelists at Monday's law school debate "Ending drug prohibition: yes, no, or maybe?" from sharing their opinions on the topic.

The public debate, which was attended by roughly 100 people, featured as participants Judge Jim Gray of the Superior Court of Orange County; Mark Kleiman, UCLA School of Public Policy professor; and James Q. Wilson, a professor at the Anderson School.

The event was moderated by Jim Willwerth, Time magazine legal correspondent.

Co-sponsored by the School of Law, the UCLA Program in Public Interest Law and Policy, the Federalist Society and Bruin Libertarians, the forum began with Gray's listing of multiple problems caused by current U.S. drug policies.

"Prohibition has costs," said Gray. "Most problems today are not drug problems, but rather drug prohibition problems."

Among such societal costs, Gray highlighted crime, a loss of civil liberties, increased corruption and an ever-growing prison population.

According to Gray, California has built 16 prisons since 1984, compared to 14 being built in the state's history before 1984.

He also emphasized the health risks that current drug policies encourage.

"Intravenous drug users do not deserve to be infected with AIDS - we are denying these people, who are going to use drugs anyway, the right to use clean needles."

Gray suggested that education, positive incentive programs, and promoting individual responsibility on the user's part would minimize the problem, in contrast to current "drug warrior" tactics.

Wilson, the next speaker, contested Gray's comments, suggesting that a focus on demand, rather than incentive programs or education, is the key to solving America's illegal drug conundrum.

"We should reshape our drug policy, by redirecting supply control tactics to focus on demand," Wilson said. "As long as there is a demand for drugs, there will always be a supply."

According to Wilson, making drugs less attractive to Americans - and especially youth - will substantially decrease the problem.

He also suggested drug tests should be performed on welfare recipients and ex-convicts on parole, with a loss of federal money or prison time as punishments for discovered illegal drug use.

"We cannot solve our drug problems simply by sending more people to prison," Wilson said. "The presence of drugs on the streets are where we should focus our efforts."

"Education only goes so far," Wilson continued. "The goal is to use the pressure of the state to reduce demand of drugs."

The debate ended with a 20-minute speech by Kleiman, who argued both against the legalization of drugs, and against the current U.S. drug war.

"Libertarian policies of legalization won't work - too many people are going to get hurt," Kleiman said.

Kleiman focused much of his speech on alcohol, which he suggested as the No. 1 problem drug, over cocaine, heroin and marijuana.

As solutions, Kleiman suggested eliminating the age restriction, a beer tax, and stricter punishments for abusers.

"Why is it when someone is arrested for drinking and driving, we take away their driver's license?" he said, suggesting instead the right to buy alcohol should be suspended.

The debate ended with a brief question-and-answer period with the audience.

Eugene Volokh, UCLA School of Law professor and organizer of the event, said he thought the debate was very informative.

"What are law schools for but to put together great panels?" Volokh added.

Some in the audience, however, including members of groups who co-sponsored the debate, were dissatisfied.

"I felt it wasn't representative of how we feel about the issue of legalizing drugs," said Justin Sobodash, law student and vice president of Bruin Libertarians. "I don't think there was much difference in the views of the speakers."

Although he said the forum was productive in some ways, Sobodash felt that the Bruin Libertarians should not have co-sponsored the event.

"Somewhere along the line we were misled," Sobodash said.

In response to such complaints, Volokh suggested that time for discussion was limited.

"You've got three people with 20 minutes of time each - you can't cover everything in an hour," he said.

Judge Gray, a Drug-War Foe, Will Run for Senate
By Claire Luna
November 20, 2003 in print edition B-3

As crusades go, Judge James P. Gray’s fight to legalize drugs has been a long and lonely one.

His advocation of treatment instead of jail time for drug offenders has gained some converts, but Gray’s views remain largely on the outskirts of acceptability. Some of his closest friends disagree with his opinions, and his most vicious opponents accuse him of being a biased, negative role model.

But Gray is dogged in his long-held belief that legalization is the only way to solve what he says is an increasingly unsuccessful war on drugs. He lectures at least once a month on his views, this week to a county bar association, next month to a group of Alaskan Libertarians.

In the latest chapter of the conservative judge’s uphill struggle, Gray has become a Libertarian and announced Wednesday that he is running for the U.S. Senate.

The odds of unseating Democrat Barbara Boxer in next year’s election are long, but the opportunity to show the major parties that his message resonates with voters is victory enough for him.

“Every single vote I get will legitimately be seen in favor of repealing drug prohibition,” said Gray, 58, the day before announcing his candidacy at the Old Orange County Courthouse in Santa Ana .

“The other side is going to want to get my votes, and to do that they’ll have to change their drug policy. If that happens, I’ll have won.”

Gray is hoping to get 15% of the vote, a longshot for a third-party candidate. His campaign slogan targets the apprehension that mainstream voters might feel: “This time, it matters.”

A lifelong Republican, Gray said he switched this year because the Libertarian message of greater individual freedoms better aligns with his own.

Libertarians in California are looking to Gray’s candidacy to bring legitimacy and an improved turnout for the party, which traditionally draws between 1% and 2% of the vote in U.S. Senate races.

“He brings with him the gravitas of his position,” said Mark Selzer, southern vice chairman for the California Libertarian Party. “He’s going to take our party to the next level in terms of the respect people have for us.”

One of Gray’s longtime friends, Costa Mesa Police Chief John D. Hensley, disagrees with the judge’s views but still came to Wednesday’s campaign opening to lend moral support.

“He’s a good man and an ethical judge, and I wish him all the best in his campaign,” Hensley said. “Still, since his thinking is well outside the mainstream, he’s going to have some difficulties.”

That’s an understatement, Boxer campaign spokesman Roy Behr said. “A huge, huge majority of voters will be opposed to that position,” he said. “There is no significant support for that platform.”

Gray’s views have long made him the object of accusations of bias. A decade ago, his appeal for the legalization of drugs drove now-retired Orange County Sheriff Brad Gates to lash out to reporters: “What was this guy smoking? It’s crazy. What kind of role model is he?”

Gray, who has taken a leave of absence from his legal duties until the campaign concludes, concedes that his stance might seem a poor message for children. But he maintains the drug problem has grown too vast to be managed by imposing morals on young people who see the rules as hypocritical.

“People of my generation used marijuana,” Gray said, “and now we’re putting our children in jail for using it. There’s no way we can punish ourselves out of this problem.”

Legalizing and taxing marijuana could net California as much as $3 billion, Gray contends, including the $1 billion the state spends each year churning low-level offenders through the legal system.

“If we were to put those people in treatment programs and jobs,” he said, “we’d be a lot safer.”

In the years he has been waging his own war on the war on drugs, Gray said he has learned that when battling the conventional, you can’t be in a hurry, and you can’t get discouraged.

A few dents at a time, he said. That’s how it’s done.

James Polin Gray

1945: Born Feb. 14 in Washington, D.C.; raised in Los Angeles area 1966: Awarded undergraduate degree in history from UCLA 1966-1968: Member of U.S. Peace Corps in Costa Rica 1971: Awarded Juris Doctor from University of Southern California 1972-1975: U.S. Navy defense attorney/staff judge advocate at naval air stations in Guam and Lemoore, Calif. 1975-1978: Assistant U.S. attorney, Los Angeles 1978-1983: Private practice 1983: Appointed to Santa Ana Municipal Court by Gov. George Deukmejian 1989: Appointed to Orange County Superior Court by Gov. Deukmejian * Sources: Source: Orange County Superior Court; www.judgejimgray.com; Times reports

Friends Outside Los Angeles County

Judge Jim Gray supports the efforts of "Friends Outside Los Angeles". Friends Outside in Los Angeles County serves as a bridge between families, inmates, and the community, to break the cycle of crime. Friends Outside creates the bridge by providing supportive services to the families of those incarcerated and linking families to community organizations and government programs. We also support inmates and ex-inmates in making a succesful transition into society.

95% of inmates is released to the community; 70% return to prison. In most cases, the underlying causes of criminal behavior, such as substance abuse, are never addressed. In addition, when someone goes to jail or prision families face a host of financial and emotional hardships.